Employers Shouldn’t Jump to Any DACA Conclusions

Today (September 5, 2017), the Trump administration announced it is rescinding DACA, or the Deferred Action for Childhood Arrivals, with Attorney General Jeff Sessions noting the Department of Justice could not defend the program in court. One central purpose of DACA is to provide work authorization to individuals who would otherwise be unable to work legally. Although the rescission is aimed at DACA recipients, it also has a direct effect on employers of immigrant workers. Under the guidance released, current DACA recipients will retain their work authorization until it expires, but employers will be unable to continue employing DACA recipients when that authorization expires without risking liability and hefty fines. As a practical matter, DACA’s rescission will result in employers having to terminate the employment of members of the workforce. In doing so, employers must ensure any employment decisions are made based on actual knowledge of employment authorization and not suspicions or assumptions about an employee’s immigration status either from the employer or a manager. Sarah Riskin, a labor and employment attorney at Nilan Johnson Lewis, explains, “Speculating as to whether an individual is legally authorized to work could subject employers to allegations of unlawful discrimination based on national origin or race.” Riskin advises employers to follow the Department of Homeland Security’s guidance throughout the six-month grace period to ensure compliance. To contact Sarah Riskin about DACA or related employment issues, contact her at 612.305.7713 or sriskin@nilanjohnson.com.